Terms and Conditions
R&R BETH LP Terms and Conditions of Sale
The following terms and conditions apply to the purchase of equipment, parts and/or services from R&R BETH LP (hereinafter “R&R”). Definitions for those certain capitalized terms are set forth below.
1. Terms and Conditions Binding; Entire Agreement. The quotation, quote or proposal (hereinafter “Quotation”) of R&R, together with these Terms and Conditions of Sale (hereinafter “Terms and Conditions”) and all other attachments to the Quotation (collectively, the “Offer”), is an offer to sell equipment and/or spare parts and any attendant services to Buyer. The Offer is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions. No amendment of these Terms and Conditions, whether such amendment is inconsistent with, different from, or in addition to these Terms and Conditions will be binding upon R&R unless specifically agreed to in a writing signed by R&R. No action, inaction or course of dealing by or on behalf of R&R shall be deemed an acceptance or agreement of any other term in any other document relating to the subject matter herein. Buyer may accept the Offer by executing and delivering to R&R a copy of the Quotation or submitting a purchase order that specifically conforms to or references the Offer, thereby creating a contractual agreement (the “Agreement”). The Agreement constitutes the entire agreement between R&R and Buyer regarding the subject matter herein and supersedes all prior and contemporaneous agreements between such Parties, whether written or oral, with respect to such subject matter.
2. Third Party Beneficiaries. This Agreement confers no benefits on any third party, nor will R&R be held liable for any agreement or breach of any agreement entered into between the Buyer and any third party.
3. Delivery Terms; Delivery Dates; Risk of Loss; Inspection and Damage. Delivery terms for the items set forth in the Agreement (the “Equipment”) are as follows: (A) For all R&R Equipment shipped by and at the direction of R&R: (1) If the “Delivery Destination” as set forth in the Quotation is in the United States of America ("U.S.") then delivery will be DDP “Delivery Destination”; (2) If the “Delivery Destination” as set forth in the Quotation is in any other country, delivery will be CIF “Delivery Destination” or Ex Works “Delivery Destination” as set forth in the Quotation; (3) Risk of loss to the Equipment passes from R&R to Buyer at the time the Equipment has been delivered to Buyer pursuant to this Section; (4) R&R is not responsible for freight costs, and if Buyer requests R&R to arrange and/or prepay freight the Buyer shall pay R&R a handling charge equal to 10% of total freight charges due and payable upon delivery to Buyer; provided, however, that any such prepayment by R&R shall not in any way affect title or risk of loss to the Equipment as set forth in this Section; (5) All delivery dates in the Quotation are approximate, and time is NOT of the essence with respect to Section; (6) R&R reserves the right to delay shipment of any and all parts and equipment until Buyer has complied with payment terms as set forth in the Quotation. R&R will not be held liable for any delays in delivery or any consequential damages alleged due to any perceived delays in delivery; (7) Buyer shall inspect the Equipment upon receipt thereof and immediately report any shortage or damage to R&R and the carrier; (8) R&R shall file any claims for any shortage or damage with the carrier upon immediate notice by Buyer if R&R is charged with arranging and/or prepaying freight; (9) If Buyer fails to report any claim for shortages or damage within Ten (10) days after Buyer’s receipt of the Equipment, such failure shall constitute a waiver of Buyer’s rights of inspection and rejection; (B) for all R&R Equipment shipped by and at the direction of Buyer: (1) Buyer shall be responsible for all creation and supplying of all shipping documents to R&R necessary to allow and perfect delivery to Buyer’s destination; (2) Risk of loss to the Equipment passes from R&R to Buyer at the time the Equipment has been picked up by Buyer’s carrier pursuant to this Section; (3) Time is not of the essence with respect to Section, and R&R will not be held liable for any delays in delivery or any consequential damages alleged due to any perceived delays in delivery; (4) Buyer shall inspect the Equipment upon receipt thereof and immediately report any shortage or damage to R&R and the carrier; (5) Buyer shall file any claims for any shortage or damage with the carrier; (6) If Buyer fails to report any claim for shortages or damage within Ten (10) days after Buyer’s receipt of the Equipment, such failure shall constitute a waiver of Buyer’s rights of inspection and rejection; and (7) R&R reserves the right to delay shipment of any and all parts and equipment until Buyer has complied with payment terms as set forth in the Quotation.
4. Technical Documentation. Timely performance by R&R is contingent upon Buyer supplying to R&R, upon request, all required technical information, including, without limitation, drawing approval and all required commercial documentation. Any technical documentation, drawings, brochures or catalogs provided to Buyer by R&R, and all of R&R’s Technology, are the property of R&R and such materials do not alter or amend the terms and conditions set forth in these Terms and Conditions. R&R reserves all property rights in and of such documentation and/or Technology. Without R&R’s prior written consent, any such R&R documentation and/or Technology shall not be: (i) disclosed, in whole or in part, to any other Person; (ii) used for any purpose other than those for which they have been provided to Buyer; or (iii) used for the manufacture of any duplicate or similar equipment or parts by Buyer or any other Person.
5. The Agreement is not subject to unilateral change or cancellation by Buyer. If Buyer fails to comply at any time with any payment terms in the Agreement, and upon receipt of written notice (“Notice”) sent by R&R, including by email communication with an officer or principal of Buyer, and such failure to pay continues for ten (10) days after date of said Notice, then R&R shall have the right to cancel the Agreement, and upon such cancellation shall have no further duties or obligations to Buyer hereunder. Buyer agrees that upon cancellation by R&R under this Section all monies paid to date by Buyer are nonrefundable. R&R reserves the right under this Section to pursue any and all outstanding monies due and owing, including, but not limited to, R&R’s costs, losses and anticipated profits relating to such cancellation. In the event R&R pursues collection under this Section, Buyer agrees that R&R is and shall be entitled to recover its costs and reasonable attorney’s fees incurred in the enforcement of this Section.
6. No Removal of Safety Devices. Buyer covenants that under no circumstances will Buyer remove any safety equipment, devices, guards, warning/safety labels or notices from the Equipment. Violation of this Section by Buyer shall result in any and all warranties being deemed null and void, and Buyer agrees R&R shall have no liability whatsoever to Buyer for any losses, damages or injury caused by or resulting from Buyer’s removal of such safety devices or from Buyer’s violation of this Section.
7. Ownership of Technology/Improvements. R&R shall retain exclusive ownership of all right, title and interest in and to all R&R Technology and Improvements. R&R’ sale of the Equipment hereunder does not grant or convey to or confer upon Buyer or any other Person any license of any kind, express or implied, for or in connection with any R&R intellectual property rights.
8. At all times after the Agreement is formed, Buyer shall: (i) maintain the Confidential Information in strict secrecy by utilizing the same degree of care as Buyer utilizes for maintaining the confidentiality of its own confidential or proprietary information (which in no event shall be less than reasonable care); (ii) not use the Confidential Information in any way, in whole or in part, except as is necessary for Buyer to operate, maintain or repair the Equipment and for no other purpose of any kind; (iii) not publish or disclose the Confidential Information in any way, in whole or in part, to any Person.
9. Security Agreement and Reservation of Title. If R&R and Buyer agree in the Quotation that the Equipment shall be tendered to Buyer prior to payment in full of all amounts due and owing to R&R for the Equipment (any such amounts due and owing shall be hereinafter referred to as the “Purchase Money Obligation”), then to secure the Purchase Money Obligation, Buyer hereby grants to R&R a Purchase Money Security Interest in each item of Equipment (hereinafter “Collateral”). For purposes of this Section, “Collateral” means the Equipment, wherever located and whether now owned or hereafter acquired, together with all present and future attachments, accessions, replacements, additions, products, and proceeds (including insurance proceeds) thereof. Title shall remain vested in R&R at all times until Buyer has paid in full all amounts due and owing under this Agreement, including all ancillary expenses incurred in execution of this Agreement. At no point until title to the Equipment fully vests in the Buyer and all Security Interests are extinguished shall the Equipment be considered an accession to any real estate property. Buyer hereby authorizes R&R to file such financing statements as R&R, in its sole discretion, may determine to be desirable to perfect such R&R purchase money security interest in the Collateral, and Buyer agrees to fully cooperate with R&R and to execute any and all documents and instruments reasonably requested of Buyer to perfect such R&R security interest. Buyer hereby irrevocably appoints each R&R officer as its attorney-in-fact for the purpose of executing financing statements or similar documents to implement this provision. R&R may, and Buyer shall, at any and all times notify any other Person claiming a security interest in Buyer’s assets or inventory of this purchase money security interest. Buyer will pay when due the Purchase Money Obligation to R&R and will repay immediately on demand the cost of filing financing statements and any renewals or extensions thereof incurred by R&R in connection with the Purchase Money Obligation. Upon Buyer’s failure to pay the Purchase Money Obligation when due, R&R shall have the right to and may pursue any and all legal or equitable rights or remedies available to a secured creditor under the applicable provisions of the Uniform Commercial Code.
10. Right to Remote Access. Buyer hereby acknowledges and agrees that Equipment sold by Seller may require remote access via an internet, Ethernet, VPN connection, or similar communication method in order to permit R&R to perform maintenance, audit, or inquiry on said Equipment. Buyer hereby agrees that any such access established prior to the complete and total vesting of title in Buyer as set forth in the “Security Agreement” section of this contract shall remain in full force and shall not be tampered with, disabled, disconnected, or terminated in any manner by Buyer in which R&R is limited in its access to said Equipment. Buyer hereby acknowledges and agrees that any such tampering, disabling, disconnecting or termination or said access shall give a cause of action by which R&R may file in the appropriate court for an injunction, breach of contract, damages, or any other claims as necessary to ensure this provision of the Terms & Conditions is enforced. Buyer hereby agrees to be liable for all cost, including reasonable attorneys’ fees and costs associated with the same, incurred in by R&R in enforcement of this provision.
11. Disability Provision. Buyer hereby agrees that R&R shall have the right to disable any and all Equipment transferred under this Agreement if Buyer fails to make all necessary and required payments pursuant to the terms of this Agreement. Buyer hereby agrees to hold R&R harmless for any damage caused by R&R exercising this right, including any actual, punitive, or other damages incurred by Buyer. Buyer hereby agrees that it shall be liable to R&R for any and all losses, liabilities, damages, costs, and expenses (including, without limitation, attorneys’ fees, accounting fees, and investigation costs to the extent permitted by law) alleged or incurred arising out of or relating to the actions of R&R in regards to this provision.
12. Severability. If any provision herein is determined by an Authorized Court to be invalid, illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, legal and enforceable to the maximum extent permitted by applicable law. The invalidity, illegality or unenforceability of any part of the Agreement shall not render invalid the remainder of the Agreement.
13. Taxes. The purchase price set forth in the Quotation shall be paid without deduction or withholding for any Taxes levied with respect to such purchase price. All Taxes, when applicable, will be the sole obligation of Buyer and will be paid by Buyer directly to the applicable Government Authority, unless prohibited by law, in which case Buyer shall timely pay such Taxes to R&R for remission to the appropriate Government Authority.
14. Credit Sales. R&R reserves the right to withdraw credit and require full payment before production, shipment or delivery if R&R, in its sole discretion, determines that Buyer’s financial condition does not merit R&R’ extension of credit. A finance charge of 1.5% per month will be assessed on all past due balances. If such finance charge exceeds the maximum rate allowed by applicable law, then such finance charge shall be deemed to be reduced to equal the maximum rate allowed by applicable law.
15. Collection Costs. In the event Buyer fails to timely remit payment for any transaction with R&R, and R&R commences any collection activity or action, Buyer shall be liable for all of R&R’ collection costs, including reasonable attorneys’ fees and costs associated with the same.
16. Buyer hereby consents to R&R’ use of Buyer’s name as a reference and customer in R&R sales and marketing materials and efforts, including, without limitation, brochures, sales literature and website.
17. Force Majeure. R&R’ performance hereunder shall be excused if and for so long as a breach is caused by a Force Majeure and reasonable notice thereof has been given to Buyer. If R&R fails to perform hereunder as a result of a Force Majeure, R&R shall be required to fulfill its obligations hereunder within a reasonable time after the Force Majeure ceases to exist.
18. Export Controls. The Agreement and all Equipment furnished by R&R to Buyer in connection herewith shall at all times be subject to any applicable law, treaty or convention relating to the export, re-export, delivery or transfer from the U.S. of any products that may be imposed from time to time by any Government Authority, including, without limitation, the U.S. Export Administration Regulations.
19. The Agreement shall not be amended except by a written instrument executed by an authorized representative of both Parties; provided, however, the Warranty may only be amended in accordance with the provisions found in these Terms and Conditions.
20. Buyer may not assign any of its rights, duties or obligations under the Agreement without R&R’ prior written consent. R&R, however, may freely assign the Agreement to any subsidiary, affiliate or related entity with or without the consent of Buyer, upon thirty (30) days’ prior written Notice to Buyer.
21. Notices. All notices required or permitted hereunder shall be in writing, shall be addressed to the Parties at their respective addresses as set forth in the Quotation, and: (i) Personally delivered (deemed effective upon personal delivery); or (ii)sent by an internationally recognized, commercial overnight delivery service with provisions for a receipt, postage or delivery charges prepaid (deemed effective upon receipt).
22. Mandatory forum selection clause. Any dispute between the Parties arising out of or related to the Agreement and/or these Terms and Conditions (“Dispute”) shall be subject to and within the sole and exclusive jurisdiction and venue of any state circuit or federal court sitting in Fulton County, Georgia, (the “Authorized Courts”). Any action commenced over or for a Dispute must be commenced in one of the Authorized Courts and fully adjudicated, settled and/or concluded in one of the Authorized Courts. The Parties exclusively and irrevocably consent and submit to the personal jurisdiction and venue of the Authorized Courts and agree not to challenge or assert any defense to the jurisdiction or venue of the Authorized Courts, including, without limitation, forum non conveniens. If Buyer commences any action over or for a Dispute in a court other than either of the Authorized Courts, Buyer shall pay all of R&R’ costs and expenses, including attorneys’ fees and court costs, to move such action to the appropriately venue Authorized Court. Choice of substantive law. In the event an action is commenced and maintained over or for a Dispute in the Authorized Courts in the State of Georgia, the Parties hereto do irrevocably choose and elect the substantive laws of the State of Georgia to govern the adjudication of any such Dispute, without regard to principles of conflicts of law.
23. Failure by either Party to insist upon strict performance of any provision herein by the other Party shall not be deemed a waiver by such Party of its rights or remedies or a waiver by it of any subsequent default by the other Party, and no waiver by either Party shall be effective unless it is in writing and duly executed by such Party.
24. The terms and conditions herein shall survive and continue to bind the Parties after the execution and delivery of the Agreement and the expiration or earlier termination of the Agreement, to the extent and for as long as may be necessary to give effect to the rights, duties and obligations of the Parties pursuant to the Agreement, subject to any applicable statute of limitations.
26. “Buyer” means the Party to whom the Quotation or proposal is addressed (as set forth on the first page thereof);
27. “Confidential Information” means all information, in whatever form, relating to any business of R&R or any R&R affiliate, that is:
A. treated as confidential and/or proprietary by R&R or any R&R affiliate; and
B. disclosed by R&R or any R&R affiliate to Buyer or is otherwise learned, observed or perceived by Buyer, at any time before, on or after the Effective Date in connection with the Agreement;
28. “Effective Date” means the effective date of the Agreement which shall be the date on which R&R and Buyer have each agreed upon the terms of, and duly executed, the Agreement;
29. “Equipment” means the equipment, spare parts and/or other products set forth in the Quotation;
30. “Force Majeure” means any event or circumstance beyond R&R’ reasonable control that prevents or delays the performance of R&R’ obligations hereunder, including, without limitation, natural disasters, wars, riots, sabotage, terrorism government action, lockout, strikes, labor disputes, inability to obtain suitable equipment or components, delay or default by R&R’ suppliers, acts of God or fire;
31. “Government Authority” means any foreign, federal, state, local or other government, government agency or authority or quasigovernmental body, including, without limitation, any government department, board, commission, court or tribunal;
32. “Improvement” means any invention, innovation, idea, improvement, trade secret, knowhow or other intellectual property right of any kind, whether or not patentable, that:
A. is made, conceived, developed or reduced to practice by Buyer or by or on behalf of R&R, either independently or jointly with any other Person; and
B. incorporates, embodies, arises from or relates to, any R&R Technology or any Equipment;
33. “Parties” means R&R and Buyer;
34. “Person” means any individual, corporation, Government Authority, partnership, limited liability company or any other entity of any kind;
35. “Taxes” means all taxes, charges or other assessments of any kind of any Government Authority (including, without limitation, withholding taxes, sales taxes, use taxes, and any interest, fines, or penalties thereon) levied or based on, directly or indirectly, any purchase price paid hereunder, whether levied against R&R, Buyer or any other Person. “Taxes” shall exclude any income, franchise or any other similar taxes of any Government Authority payable by R&R as to its receipt of any purchase price; and
36. “Technology” means all (both domestic and foreign) patents, patent applications, copyrights, trademarks, service marks, trade names, licenses, mask works, know-how, trade secrets, methods, processes, technologies, inventions, ideas, improvements, concepts, Confidential Information and all other intellectual property rights of any kind, owned by, or licensed to R&R or any related or affiliated entity or Person.
26. LIMITED WARRANTY
27. Scope. R&R warrants solely to Buyer of the Equipment that for a period of One (1) Year commencing on the date Buyer accepts delivery of the Equipment, or for Two Thousand (2,000) operating hours of the Equipment, whichever occurs first (“Warranty Period”), the Equipment will be free from material defect in material and workmanship, under normal and intended use (“Warranty”). If the Equipment or any component thereof is manufactured by a third-party manufacturer and not R&R, then, in addition to the Warranty, Buyer shall also be entitled to obtain the benefit of the terms and conditions of any such other manufacturer’s warranty (if any) from the manufacturer and R&R will assign, as necessary, all such warranties to Buyer to the extent such warranties are assignable. However, nothing herein shall be construed as an intention to make Buyer a third-party beneficiary of any contract R&R has with any manufacturer or other Person, and R&R does not intend that Buyer is a third-party beneficiary of any contract, agreement or obligation R&R has with any manufacturer or other Person.
28. Remedies under Warranty. R&R reserves the right, in its sole discretion, to verify any Warranty claim by Buyer shall give notice of any Warranty claim to R&R within one (1) month of Equipment defect occurrence within this Warranty. Buyer’s sole and exclusive remedy for a Warranty claim accepted by R&R is that R&R will, at its option and in its sole discretion, and at its sole cost and expense, either:
A. correct all such defects in material and/or workmanship by repairing, replacing or modifying the Equipment to comply with the Warranty; or
B. refund the purchase price paid for the piece or item of defective Equipment.
29. Extension of Warranty. This Warranty is extended by R&R solely to Buyer and is not intended to apply to or create rights in any third-party. Any repair, replacement or modification of the Equipment, pursuant to the Warranty, shall not in any way extend the Warranty Period or the Warranty. Buyer is required to:
A. obtain from R&R a written return material authorization number, which shall be provided prior to the Equipment being returned to R&R; and
B. return the Equipment to the point of manufacture, all at Buyer’s sole cost and expense. Notwithstanding anything to the contrary contained herein, should this exclusive remedy be finally determined by a court of competent jurisdiction to fail of its essential purpose, then R&R’ liability to Buyer for the Equipment shall be limited to the aggregate purchase price paid by Buyer for the piece or item of defective Equipment.
30. Labor, Parts and Materials During Warranty Period. During the Warranty Period, all parts and materials to be provided by R&R pursuant to the Warranty shall be provided by R&R without charge, as provided herein. R&R will own all parts removed from repaired Equipment. Buyer understands that R&R uses both new and reconditioned parts made by various manufacturers in performing warranty repairs and building replacement products.
31. Labor, Parts and Materials After Expiration of Warranty Period. There shall be no Warranty for labor, parts or materials after the expiration of the Warranty Period. Equipment returned out of Warranty shall be repaired, replaced or modified, at the option of R&R, and Buyer shall pay R&R’ then current standard charges for:
A. labor, parts and materials supplied by R&R for servicing the Equipment; and
B. any service calls at the customary rate(s) in effect at the time of service as determined by R&R in its sole discretion.
i. Exclusions. This Warranty does not cover any Equipment defect occurring: from normal wear and tear;
ii. in shipment to or from Buyer or the point of manufacture;
iii. due to Force Majeure, or any external cause, fire, accident, problems with electrical power or plant provided facilities or any other cause (other than ordinary commercial application);
iv. due to improper handling, installation, maintenance or reasonable care, improper use, use for any purpose or application for which it was not designed or intended, abuse or neglect, by Buyer or any other Person (other than R&R or R&R authorized personnel);
v. due to alteration, modification, connection or repair of any kind, by Buyer or any other Person (other than R&R or R&R authorized personnel);
vi. due to improper environment, poor air quality, excessive or inadequate heating or other environmental irregularity;
vii. due to any addition of any part, component or accessory (or any use thereof) that is:
a. added by Buyer or any other Person (other than R&R or R&R authorized personnel);
b. not supplied or approved in writing by R&R;
c. due to use or operation of the Equipment by Buyer or any other Person (other than R&R or R&R authorized personnel) not in accordance with any Equipment storage, operation, maintenance or repair instructions furnished by R&R or for any operation not in accordance with generally accepted industry practice;
d. to consumable parts; or
e. due to abuse from nonconforming materials.
1. No Authority to Alter Warranty. No R&R employee, agent, representative or distributor has any authority to alter any of the terms of the Warranty in any way. The Warranty may only be altered in writing by an authorized officer of R&R.
27. DISCLAIMER OF OTHER WARRANTIES.
A. Except as expressly set forth in these terms and conditions:
i. R&R MAKES NO OTHER REPRESENTATION, WARRANTY OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, DIRECT OR INDIRECT, TO BUYER OR ANY OTHER PERSON; AND
ii. R&R EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND GUARANTEES (INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION, WARRANTY OR GUARANTEE OF MERCHANTABILITY, OF FITNESS FOR AN ORDINARY, GENERAL OR PARTICULAR PURPOSE, OF QUALITY, OF NON-INFRINGEMENT, AS TO ANY SPECIFICATION, OR FROM ANY COURSE OF DEALING OR USE OF TRADE) WITH RESPECT TO ANY MATTER WHATSOEVER IN CONNECTION WITH THE EQUIPMENT (OR ANY COMPONENT OF OR SERVICE RENDERED WITH RESPECT TO THE EQUIPMENT) OR ITS PERFORMANCE; INCLUDING, WITHOUT LIMITATION, ITS CONDITION OR PERFORMANCE CAPABILITIES OR THE QUALITIES OF ANY PRODUCT OR SERVICE PRODUCED THEREFROM; ITS COMPLIANCE WITH APPLICABLE LAW, OR ANY OTHER MATTER WHATSOEVER RELATING TO THE AGREEMENT.
28. NO CREATION OF WARRANTY.
A. ANY ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN OR MADE BY R&R OR ANY OF ITS EMPLOYEES, AGENTS, REPRESENTATIVES OR DISTRIBUTORS:
i. SHALL NOT CONSTITUTE A R&R REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTY;
ii. SHALL NOT BE RELIED UPON BY BUYER OR ANY OTHER PR&RON; AND
iii. IS NOT A PART OF THE WARRANTY.
29. LIMITATION OF LIABILITY
A. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BUYER AGREES THAT, UNDER NO CIRCUMSTANCES SHALL R&R HAVE ANY LIABILITY OF ANY KIND AT LAW OR EQUITY TO BUYER OR ANY OF BUYER’S AGENTS, EMPLOYEES, ASSIGNS AND/OR RELATED PERSONS, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: LOST PROFITS, LOST TIME AND CONVENIENCE, COST OF A PRODUCT RENTAL, LOST REVENUES, LOSS OF USE, INTEREST OR CARRYING CHARGES ON INVESTMENT, INDEMNITY, EXPENSES ARISING FROM COSTS OF CAPITAL, REMOVAL OR REINSTALLATION, TRAVEL OR LODGING, UNDERUTILIZATION OF LABOR, EQUIPMENT OR FACILITIES, OR ANY DAMAGES OF ANY KIND COVERED BY INSURANCE HOWEVER CAUSED (EVEN IF R&R HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE).